On September 16, 2019, the Arizona Supreme Court issued a 4-3 decision in Brush & Nib Studio v. City of Phoenix. The case pitted a city anti-discrimination ordinance against a business offering hand-drawn invitations and paintings for various circumstances. The business owners declined to provide custom invitations for same-sex weddings.

The majority opinion rules for the business owners on all three issues presented, holding that (1) the plaintiffs had standing to bring pre-enforcement claims; and (2) the city’s anti-discrimination ordinance, as applied to the plaintiffs’ calligraphy services in connection with gay weddings, both (a) violates the free speech clause in the Arizona constitution and (b) fails to satisfy the test established by Arizona’s Free Exercise of Religion Amendment (“FERA,” i.e., the Arizona equivalent of the federal Religious Freedom Restoration Act or “RFRA”).

There were five separate opinions. Justice Bolick authored a separate concurrence focused on the interplay between the federal and state constitutional rights at issue. Chief Justice Bales’s opinion was joined by Justice Timmer and Judge Staring (who sat by designation); this primary dissent essentially saying that the Court struck the wrong balance between liberty (for the calligraphers) and equality (for wedding celebrants). Justice Timmer’s opinion says, in short, that the burden on the calligrapher plaintiffs appears to be non-substantial and therefore the Court’s FERA/RFRA analysis is incorrect. Judge Staring’s opinion appears to accept the majority’s position on the “substantial burden” issues, without accepting the balance of its FERA/RFRA analysis.

Brush & Nib could be a watershed decision for similarly situated plaintiffs nationally. The majority decision is the first of its kind, as plaintiffs in other states (NM, NY, WA) had previously failed to win majority support for their theories. The majority in this decision seems conscious of that fact. Their analysis is extensive, they make alternative legal findings to support their conclusions (i.e., although they could have decided on speech grounds alone, they additionally ruled for the plaintiffs on FERA/RFRA grounds), and addressed the decisions of other state courts.

Jon Scruggs from the Alliance Defending Freedom argued before the Arizona Supreme Court on behalf of the business owners. Eric Fraser argued on behalf of the City of Phoenix. They will join us to break down the opinions and comment on the implications moving forward.

Featuring:
— Jonathan Scruggs, Senior Counsel and Director of the Center for Conscience Initiatives, Alliance Defending Freedom
— Eric M. Fraser, Partner, Osborn Maledon
— Moderator: Hon. Jennifer M. Perkins, Arizona Court of Appeals

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